7 years since shocking hate crime, civil rights suit over Nantucket public meeting surfaces racial tension

Nantucket African Meeting House, 1880
Nantucket Historical Association

A shocking hate crime of vandalism on storied Nantucket Island in 2018 has resulted in sour police-community relations, a free-speech civil-rights claim remanded to trial court just this August, and retention in September of a private firm for an independent review.

In March 2018, the historic 1827 African Meeting House on Nantucket Island was vandalized with hate speech in black spray paint, including the "n-word," as shown in the image below, at bottom, from the appendix to the August appellate court decision. (Sensitive readers be warned.)

To date, no one has been convicted of the vandalism. In a civil rights lawsuit by Nantucket residents Jim Barros and Rose Marie Samuels, the Superior Court in 2022 blamed a suspect, Dylan Ponce, who asserted his Fifth Amendment right against self-incrimination, and whom a grand jury refused to indict.

Ponce's employer, Jeffrey Sayle, pleaded guilty to false statement to police and testified that Ponce confessed (The Inquirer and Mirror). The civil case against Ponce was Barros v. Ponce, Civil Action No. 2175CV00004 (Mass. Super. Ct. June 6, 2022) (paywalled at Mass. Lawyers Weekly).

Town Manager Elizabeth Gibson
Town & County of Nantucket

Sayle is the brother-in-law of Nantucket town manager Elizabeth Gibson, who herself is married to the deputy police chief of Nantucket. Given the close relationships of officials and the slow and ultimately unsuccessful police investigation, rumors picked up steam in the years after the 2018 crime that family members of Gibson and police were being protected.

In 2020, Barros and Samuels appeared at a meeting of the town board, as they had before, to demand accountability in the still ongoing investigation. Their remarks fueled continuing suspicion of a cover-up, which prompted the ire of Gibson and police chief William Pittman. 

Chief William Pittman
(captured from public meeting video)

Samuels's exchange with Gibson was especially heated. Angrily denying untruthfulness, Gibson interrupted Samuels and demanded that the chair stop her from speaking further. Samuels, who also accused police of failure to investigate a hit-and-run crash that injured her son in 2018 (more at Change.org), was cowed back to hear seat. She returned to the microphone after Gibson stormed out of the meeting.

Barros accused police of lying because he he had been told by a detective that a perpetrator was identified, but no charges resulted. Pittman, who carried a sidearm, spoke in defense of the police and accused Barros of fueling rumors of a cover-up while claiming to know the identity of perpetrators and refusing to tell police. Pittman retired in 2023.

The salient part of the public meeting is on YouTube, cued here at 27 minutes, and running for 13 minutes:

Barros and Samuels brought a civil rights action against the board, Gibson, and Pittman for violating their free speech rights under the federal and state constitutions, and for intimidation under state civil rights law. The Superior Court granted defendants summary judgment on both counts. In August, the Appeals Court voted 2-1 to to remand Samuels's statutory civil rights claim only to proceed.

The facts matter, in more detail than I've stated them here, because the pretrial disposition turns on whether the evidence is sufficient to submit the claims to a jury. Interested readers can find more detailed articulations of the facts in the judges' opinions.

In short, the court rejected the constitutional claims because neither Barros nor Samuels was actually stopped from speaking. Samuels was allowed to return to the microphone and continue after Gibson stormed out. Barros was allowed to say his piece despite the objections interjected by Pittman.

The civil rights claims were closer calls, though, because intimidation, threat, or coercion is actionable even if the plaintiffs were permitted to speak. The test is one of interference or attempted interference of a protected right, here to speak at the public meeting. 

For pretrial resolution on defense motion, the court views the facts most favorably for the plaintiffs, the non-moving parties. Yet even accepting as true that Barros "was impugned by Pittman, suffered embarrassment, and felt intimidated by Pittman's being armed," the court decided, the sum of Pittman's alleged interference was only impassioned disagreement or disapproval, not intimidation.

Rose Marie Samuels, 2020
(captured from public meeting video)

However, in the case of Samuels, Gibson expressly demanded that she be silenced, and Samuels evidenced intimidation in once returning to her seat. The court concluded, "Gibson's response to Samuels's comments, including Gibson's physically threatening departure from the meeting and hostile, intimate back-and-forth with Samuels, could be sufficient to establish a violation of the [state civil rights act] at trial."

The court's analysis of Samuels's civil rights claim raised an interesting point of "constitutional tort" law, that is, the way tort law is used to operationalize litigation over civil rights. Under state civil rights law, the court explained, "[i]n determining whether conduct constitutes threats, intimidation, or coercion, we apply an objective or 'reasonable person' standard."

Yet like in tort law, the "reasonable person" standard is not wholly objective, but is a test of the reasonable person under the same circumstances as the person being tested, or standing in the shoes of the person being tested. As the court put it, "'objectivity' does not foreclose consideration of the plaintiff's situation"; "we need not ignore who the plaintiff is."

That subjectivity made a big difference in light of Samuels's personal history with police. Considering the facts favorably to her, "she had experienced, and continued to experience, racism from the Nantucket police," the court reasoned. "She mistrusted Gibson, the town manager, who was married to the deputy police chief."

In that emotional context, the court recalled, "Samuels maintains that Gibson 'stormed' past her when leaving the meeting, 'in a physically threatening manner,' 'glar[ed] down' at Samuels from 'within a few feet,' and stopped to ask, twice, whether Samuels was calling her a liar. Samuels characterized Gibson's voice as 'loud and threatening,' and Samuels was frightened by this encounter."

Samuels therefore made a sufficient case to present her claim of intimidation for a jury to decide.

Justice Smyth

Justice Paul Hart Smyth wrote a spirited dissent favoring the plaintiffs on all three counts on which the court affirmed judgment for the defense. He would have sent all four claims, for both plaintiffs, to the jury. Be forewarned, I'm going to quote Justice Smyth at some length, because what he adds to the analysis on Nantucket social conditions I find eye opening.

Speaking to those very circumstances that made a difference in Samuels's statutory claim, Justice Smyth painted a different and bleaker picture of police-community relations on Nantucket.

The record demonstrates that the plaintiffs inhabited a different stratum in the town altogether, as they maintained no apparent political, economic, social, public order, or law enforcement influence over town affairs. First, he described Gibson's social and economic power.

Gibson first began working for the town of Nantucket in 1988, when she was twenty-two years old. She has held the position of town manager since 1995. As town manager, Gibson is a remarkably powerful and influential individual. She exercises direct supervision over almost every town department, including the police, fire, building, finance, health, marine and coastal resources, public works, board of appeals, conservation commission, planning board, council on aging, counsel for human services, historic district commission, parks and recreation, and the shellfish and harbor advisory board. As town manager, Gibson maintains appointment and disciplinary (including discharge) powers over the department chiefs and their employees.... Gibson is not subject to general election, but ... had been reappointed for consecutive terms since 1995.

.... As an acknowledgment of Gibson's influence, multiple town residents warned Barros that he might face adverse consequences to challenging Gibson by implicating her relatives as being involved in the African Meeting House crime. These individuals cautioned Barros, "You know, it's [Gibson's] son and nephew; so, be careful. Watch your back."

He then described the plaintiffs in contrast:

The record demonstrates that the plaintiffs inhabited a different stratum in the town altogether, as they maintained no apparent political, economic, social, public order, or law enforcement influence over town affairs. Samuels, of Jamaican descent, became a full-time resident of Nantucket in 1999; she resides on Nantucket with her son. Samuels has worked in the home healthcare field when her health permits.

James Barros, seventy-six years old [in 2020], worked as a part-time drywaller and plasterer. He has lived intermittently on Nantucket since he was eight years old. Barros, skeptical that the Nantucket police were committed to solving the African Meeting House crime, sought assurance that the police were dutifully investigating the matter .... As Barros stated: "That building is part of me. I'm an African. I have a right to ask who is doing damage to my house."

James Barros
(captured from public meeting video)

Justice Smyth also put additional facts on the table to suggest that the court majority gave Barros's claim short shrift, particularly insofar as circumstances may subjectify the "reasonable person" analysis.

The record supports a rational jury concluding that Pittman's words and conduct threatened Barros to the extent that Barros was terrified when he stood at the town meeting to respond. Barros's fear was based in part on his experience as a Black man who was distrustful and a vocal critic of the Nantucket police. As a consequence of Barros's continued pressure on the police to meaningfully pursue the hate crime investigation, the lead town investigator, Detective Klinger, responded with hostility toward Barros. In addition, numerous people advised Barros "to watch [his] back," and warned him that the Nantucket police were going to "set him up." .... 

The record demonstrates that Barros's fear of the Nantucket police was well grounded. Barros, while driving, was pulled over by the police on two separate occasions following the March 11 board meeting. One Sunday morning, a Nantucket officer pulled Barros over as Barros was headed home from Mass celebrated at St. Mary's Church. The officer approached Barros's truck with his hand on his gun. Although the officer stated that he stopped Barros due to a brake light malfunction, the record indicates Barros's lights were functioning properly and allows the inference of a retaliatory stop. 

In sum, Justice Smyth found sufficient evidence to show interference with civil rights of both plaintiffs, as a matter of fact, and of persons of "reasonable fortitude" in their circumstances, applying the objective test.

Frederick Douglass, center left, at abolitionist meeting, N.Y., 1850.
He first visited Nantucket for an anti-slavery conference in 1841.
Smithsonian Institute/Mr. & Mrs. Set Charles Momjian, via National Park Service

Justice Smyth offered a spirited conclusion that invoked Nantucket's abolitionist history and rallied the judiciary to the defense of speech critical of public officials:

Nearly one hundred and eighty years after Frederick Douglass sought refuge in Massachusetts and traveled to Nantucket to make his first public speech condemning slavery, a person desecrated a site sacred to the island's Black community with the words "Nigger leave." The act was more than an act of property vandalism, as it communicated a direct threat to the plaintiffs' safety and well-being as Black residents of Nantucket. While the United States Constitution, Massachusetts Declaration of Rights, and our laws will never eradicate the hatred and racism in the hearts of individuals who commit such acts, our legal framework guarantees people the right to speak out against such offenses, to petition local officials for answers, and to criticize local government and police officials for failing in their oaths to support our laws and Constitution and to seek justice for all.

Of course, it would be folly to take the force and endurance of these constitutional rights for granted, perhaps lulled by the longstanding welfare and security of our nation and by our courts' historical commitment to safeguarding free speech rights as fundamental to our representative democracy. We do not have that luxury because, even considering the relative strength of our democracy, these rights are subject to the whim of unchecked power that allows for tyrannical tendencies to suppress contrary viewpoints. Thus, the judiciary's vigilance to protect from government interference our people's right to speak to public issues is as critical today as it was when the First Amendment was ratified in 1791.

(Paragraph break added; citations omitted.)

Nantucket Harbor, 2021
RJ Peltz-Steele CC BY-NC-SA 4.0

I get Pittman's frustration at having failed to secure a prosecution for the vandalism, and, presumably with laudable motivations to avoid conflict of interest, in having ceded the investigation to the district attorney and state police. Nevertheless, he and Gibson, as public officials, have to have thicker skin, especially for justifiable outrage at a public meeting.

I share public outrage that such a hateful act defaced a historic place of contemporary cultural importance, and that no prosecution followed, upon whatever tragicomedy of errors. (I include the image below, from the court's appendix, despite the offensive epithet, to demonstrate the severity and offensiveness of the crime.) To be fair to Nantucketers, after the overnight vandalism in 2018, more than a dozen distraught local residents turned out to scrub the African Meeting House clean by 10 a.m. the next morning (Cape Cod Times). But bad eggs are still at large.

Estimates vary, but cost of living on Nantucket usually is said to exceed the national average by more than 100%, and housing costs run more than 300% over. You can bet that upper-crust property owners aren't doing much of the manual labor on the island to keep that economic engine running. Nantucket depends on a significant Jamaican population to work in the tourism industry. Yet the government on the island is worrisomely non-representative of the population by racial demographics.

Once addressing a crowd in Cork, Ireland, Frederick Douglass was shouted down with cries of, "That's a lie," "He shan’t speak," and "Down with the n—" (Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition). Justice Smyth must have been conscious of the eerie parallel to the meeting dispute and vandalism here. I do not mean to accuse Gibson and Pittman of the same culpability as slave-owners, nor of racism. Rather, I mean to suggest that Nantucket officials ought be cognizant that those same sentiments surfacing today, leveled against black residents, is not a good look.

At some point, the difference between official incompetence and insensitivity, on the one hand, and willful cover-up, on the other hand, becomes immaterial.

In September, a working group of the town board retained a Texas forensics firm, LCG Discovery Experts, to review the investigation into the African Meeting House vandalism—though not to re-investigate the crime. According to Nantucket Current News, the independent review was spurred by a citizen petition.

The case is Barros v. Select Board, No. 23-P-1058 (Mass. App. Ct. Aug. 19, 2025), available at the Social Law Library. Justice Rachel E. Hershfang wrote the court opinion for herself and Justice Vickie L. Henry, contra the dissent of Justice Smyth.

Court Appendix in Barros v. Select Board

Culp's critical perspectives endure in Chang lecture

Prof. Chang
Seattle Law

Professor Robert S. Chang delivered the inaugural Jerome M. Culp, Jr. Critical Theory Lecture at Duke Law School February 1.

Chang is professor of law and executive director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law. He spoke on, "How Do We Come to Participate in the Struggles of Those Who Are Not Us?" The lecture is posted at Panopto and on YouTube (embedded below, at bottom).

Chang traced contemporary racial differences in American history from the burning of Jamestown, Va., in the 17th century to the Civil War, Chinese exclusion laws, and, ultimately, the legal battle over affirmative action. Born in Korea, Chang's work emerges from ethnic perspective and personal experience growing up in small-town America.

My alma mater, Duke Law doesn't need me to do public relations. I mention the Chang lecture because of Professor Culp, for whom the lecture series is named. Culp was the first person of color to earn tenure at Duke Law, where he taught from 1985 until his death in 2004. He was, as Duke recounted, an internationally acclaimed critical theorist.

Culp also was my torts professor. As I tell students today, at that time, I didn't well understand Culp's MO. I suffered the common 1L affliction of wanting to know just what I needed to know. I yet saw law as learnable vocation, not profession, law school as mere trade school, not intellectual engagement with law and society. Culp didn't seem to be doing his part to make me a billboard attorney who could litigate a car accident.

I got past those hurdles. In time, I had the immeasurable good fortune of knowing Culp as a fellow academic. I came to understand that his 1L pedagogy was a cleverly subtle and seductive inculcation in critical theory. I came to appreciate him as one of my best law professors. His pedagogy powerfully shaped my approach to teaching torts, not to mention thinking about law and society in general. Culp is one of three academics to whom my Tortz textbook is dedicated.

The start of the Chang lecture video (from 2:05 to 7:50 at Panopto; YouTube cued and embedded below) features Professor Culp himself, some 20 years ago, complemented by affecting images, talking about his own life and how it motivated him to study and teach law.

To be clear, I'm not wholly in agreement with Chang on the merits of his talk, even if Culp might have been. Chang concludes that the U.S. Supreme Court decision contra affirmative action in 2023 represents an "intensification" of white racial identity and resurgent white supremacy. Chang's conclusion contains a kernel of concerning merit, but also provocatively overstates the matter.

I rather agree with what Professor Josh Blackman told an ABA program on viewpoint diversity at the Midyear Meeting in Louisville, Ky., last week: there has to be room to express a view of what the Fourteenth Amendment means, even if contra the acceptable "woke" ideology, without being branded "racist." 

Critical theory to me is, let's say, critical for exposing fault lines in our society that run contrary to our values and demand remediation. Accordingly, critical approaches form vital threads in my teaching.

But critical race theory does more harm than good when it muddies the distinction between malevolent racism and systemic inequality. And many adherents to critical theory (not necessarily Chang or Culp) go a dangerous measure further, encouraging generalizations about persons' intentions based on their skin color. I can't sign on to that.

Nevertheless, that some critical perspectives sit poorly with me doesn't mean we should avoid discussing them. Chang's lecture is a superb and coherent survey of race and American history with thought provoking implications for our time.

A nephew of mine (as a matter of fact, a young man who is racially Korean and grew up in small-town America) recently suggested to me that adults of my (13th) generation can sometimes be wrong.

I'm considering the possibility.

Trump supporter vs. MSNBC's Joy Reid heats up for round 2, following reversal on free speech issues

It looks like the two-year-old defamation case by Trump supporter Roslyn La Liberte against MSNBC personality Joy Reid is about to heat up.

Racial Slurs and Other Not-So-Pleasantries

Eponymous host of MSNBC's ReidOut and "one of the few Black women to anchor a major American evening news program," Joy Reid has stirred up her share of schismatic controversy (e.g., "series of homophobic blog posts" (Glenn Greenwald), "casual Islamophobia" (Erik Wemple (pay wall))).  In June and July, on Twitter and Instagram, Reid called out MAGA-hat-bearing Roslyn La Liberte at a Simi Valley, California, City Council meeting (La Liberte at 4:17:45 to 4:19:57) for, as alleged in La Liberte's complaint, "yelling racial slurs at a minor," including that he would "'be the first deported ... dirty Mexican!,'" and "making ... racist statements and ... being racist."

A well circulated image of La Liberte and the 14-year-old boy at the council meeting, showing La Liberte mocking being choked but not actually talking to the boy, lent credence to Reid's characterization and its viral duplication.  Trolling responses came fast and furious in the Twittersphere and via email to La Liberte, the latter along the lines, "'You are a dirty white woman b***h,'" and "'I’m glad everyone in the entire world knows what a racist piece of s**t you are f**k you a*****e'" (asterisks in complaint).

However, La Liberte denied yelling racial slurs, and her story is backed up by the youth himself.  He described their exchange as "civil."  At least once during the meeting, a racial slur was directed at the boy, his mother said, but it wasn't uttered by La Liberte.  Cited in the complaint, Fox 11 L.A. untangled the story (June 29, 2018).

 

'Racist,' as a Matter of Fact

La Liberte sued Reid in the Eastern District of New York on a single count of defamation.  Alleging defamation per se, La Liberte in the complaint asserted, "Accusations of racist conduct are libelous on their face without resort to additional facts, and, as proven by this case, subject the accused to ridicule, hate, and embarrassment."

That point alone, on the merits, is interesting.  When I made a similar claim many years ago, colleagues and observers told me that an accusation of racism is opinion only, devoid of fact and incapable of defamatory meaning, even if one were asked to resign one's job as a result of the accusation.  Other colleagues, whose counsel I favor, disagreed and asserted that accusing an academic of racism is akin to accusing a youth coach of a child sex offense, in that the claim will persist indefinitely if one does not powerfully contest it.  Distinction between an individual's "racism," and "institutional" or "systemic" racism might complicate the legal analysis, but popular culture has pondered that distinction only recently.

Anti-SLAPP as the Sword of Goliath

A second compelling issue in the La Liberte case is the operation of anti-SLAPP law.  Anti-SLAPP laws, which vary in their particulars across the states, typically allow a defendant to attain fast dismissal of a lawsuit that is a "strategic lawsuit against public participation," that is, a lawsuit through which the plaintiff means to use tort law to suppress the defendant's exercise of civil rights, such as the freedoms of speech, assembly, and petition.  

That sounds good, but problems with anti-SLAPP law are legion.  One big problem is that American defamation law already tilts wildly in favor of defendants, a First Amendment prophylaxis gone corybantic, such that plaintiffs cannot usually get anywhere near the requisite burden of proof without the benefit of discovery.  Anti-SLAPP procedure allows the defendant to terminate the case before discovery can even happen.  

Joy Reid (Luke Harold CC0 1.0)

Designed in principle to protect, for paradigmatic example, a grassroots environmental campaign against the might of an unscrupulous real estate developer, anti-SLAPP in reality is more often deployed by the Goliaths of the latter ilk against Davidic pursuers.  Anti-SLAPP (ab)users include President Trump, Bill Cosby, and Big Media.  No wonder anti-SLAPP is the darling of the media defense bar.  The sad thing is that it's convinced the nonprofit media advocacy crowd to play along.

The proliferation of anti-SLAPP laws at the state level has generated a circuit split over what to do with them when a defamation case lands in federal court on diversity jurisdiction.  The analysis boils down to whether anti-SLAPP law is procedural, in which case it may not override federal rules, or substantive, in which case the federal court must apply the law of the state that governs the case.  The last couple of years have seen the emergence of a circuit split on the question, though the most recent precedents (2d, 5th, 11th, D.C. Circuits, contra 1st, 9th Circuits) point to the procedural conclusion, with which I agree.  

As a result, defamation cases that would have been smothered at birth in state court are given a chance to gasp for air in federal court.  Meanwhile, media advocates, including John Oliver—with whom I am loath to disagree, but he just doesn't get it—have been pushing hard for federal anti-SLAPP legislation.  A bill is pending in Congress, and with left-wing media advocates and right-wing mega-corporations on the same side, David's death blow might be but weeks away.

La Liberte arose amid this anti-SLAPP circuit split and was, in fact, the occasion on which the Second Circuit joined the recent majority trend.  The court reasoned that the California anti-SLAPP procedure, the defamation having occurred in California, is incompatible with Federal Rules of Civil Procedure 12 and 56, governing motions to dismiss and for summary judgment.

Limited-Purpose Public Figures and the Involuntarily Infamous

La Liberte at the
City Council meeting

Also while the case rested with the Second Circuit, the court reversed the trial court on one more issue, the erroneous classification of La Liberte as a limited-purpose public figure.  That classification would compel La Liberte to prove the often fatal-in-fact fault standard "actual malice," that Reid knew her statements were false or was reckless with regard to their truth or falsity.  

La Liberte had not pleaded actual malice.  And, according to the court, her activism in speaking at city council meetings did not convert her from a private figure to a public figure.  La Liberte was never singled out in news coverage, the court observed, until after the alleged defamation catapulted her to public attention.  A defendant who is responsible for making a plaintiff infamous cannot thereafter escape liability by characterizing the plaintiff as a public figure.  

Incidentally, it's typically ironic that the media defendant here, Reid, purported to defend her free speech with the anti-SLAPP law while seeking to use the First Amendment-protected petitioning of the city council of the plaintiff, La Liberte, to defeat her effort to protect her reputation.

Enter 'the Lawyer for the Damned'

After remand to the Eastern District of New York, La Liberte terminated her representation by Wade, Grunberg & Wilson.  WG&W is a self-described "boutique firm" in Atlanta that boasts of a plaintiff's defamation practice, not a common thing, but maybe a growth area in our polarized post-truth society.  "The law of defamation is nuanced, peppered with landmines under the First Amendment, Anti-SLAPP Statutes, absolute immunities, and qualified privileges," WG&W writes on its website. "We know where those landmines are and, more importantly, how to navigate successfully around them."  WG&W notified the court of its withdrawal on September 28, 2020.

Wood, 2011 (Gage
Skidmore CC BY-SA 3.0)

The reason I suspect the case might now heat up, or at least jump on the express train to settlement town, is that on October 5, 2020, L. Lin Wood entered his appearance for the plaintiff.  Wood already had signed on some of the court papers, but he seems now to be stepping front and center.  Wood's breakthrough claim to fame was representing Richard Jewell, the man wrongly accused of the 1996 Centennial Olympic Park bombing against The Atlanta Journal-Constitution (there's a 2019 movie directed by Clint Eastwood).  His subsequent client list includes JonBenét Ramsey's parents, Gary Condit, Herman Cain, Elon Musk, and the Catholic high school student in the 2019 Lincoln Memorial confrontation, Nick Sandmann, as against The Washington Post.  Wood boasts that CBS news personality Dan Rather tagged him, "the lawyer for the damned."

The case is La Liberte v. Reid, No. 1:18-cv-05398 (E.D.N.Y. Sept. 30, 2019), reversed and remanded by No. 19-3574 (2d Cir. July 15, 2020).  I've not mentioned an ISP immunity issue in the case, on which the Second Circuit affirmed in favor of the plaintiff; read more by Eric Goldman (July 30, 2020).

Linguists' famous feud evidences defamatory power of 'racist' charge

As I've written and spoken about in the past, in the 20-aughts, I was an unwilling combatant, enveloped collaterally, in "the Race Wars" at the University of Arkansas at Little Rock (epilog on my part).  If you've never heard of the Race Wars, you're to be forgiven.  It happened in American flyover country, where nothing in academia matters.  Not like when something happens at UCLA, and we get all vexed about it, like it's the first time, because now it's happened to someone important.  Nevertheless, my experience was life-altering for me.  And as often happens in the course of life's affection for irony, trauma leaves knowledge, wisdom, and even enlightenment in its wake.

One thing the Race Wars did was turn me 180 degrees into a plaintiff's advocate for defamation and privacy torts, even while vigorously maintaining my bona fides as a defender of the First Amendment and freedoms of expression and information.  Oddly enough, as a lawyer in the 1990s, I had once researched, for a case, the question of whether, or to what extent, an accusation of "racist" is capable of defamatory meaning.  I had concluded then, nearly never, even if uttered upon a false factual predicate.  And I was untroubled by that conclusion, because it fit with my then-staunch allegiance to free speech near-absolutism.  When, a decade later, the R-word was weaponized against me—falsely, unless one is speaking systemically, without reference to individual culpability, but that wasn't a thing until recently—I reassessed my analysis.

Yet my research showed, still, a decade ago, that it would be exceedingly difficult, impossible in many jurisdictions, to eke a successful defamation claim out of "racist," even when an accuser is signaling, by wink and nod, a false factual basis for the charge.  Common law evolution is slow, and precedents had mounted upon the conclusion that "racist" is a matter of opinion only, incorporating no assertion of fact, and thus incapable, as a matter of law, of lowering one's estimation in the eyes of the community.  Charged with a false accusation that threatened to end my career, that conclusion felt wrong.  If one were expected to resign one's job upon the mere fact of an accusation, regardless of its veracity, and regardless of any defense—I was asked to—then that seemed to me a sufficiently horrific charge to fit the bill for defamation.

In the years since, I have seen the same dynamic play out in cases around the country, to other people, in academia, employment, politics, and other contexts, repeatedly reinvigorating that nagging question, whether "racist" is merely an expression of opinion, or can carry defamatory meaning.  So it was with great interest, while on involuntary summer/pandemic hiatus from UMass Law, catching up with my reading, that I came upon a little story about the accusation "racist" in a Tom Wolfe book.  I'm breaking hiatus momentarily to share this story with you.

Tom Wolfe's Take on 'Everett v. Chomsky'

I just read Tom Wolfe's Kingdom of Speech (2016), about the origin of language, anthropologically speaking. Wolfe references a brilliant book I read some years ago, Don't Sleep, There Are Snakes (2008), by Daniel Everett, about his language work (and much more) with the isolated Pirahã people in Brazil. What I didn't know was that Everett's book was one important salvo in a vast intellectual war, in anthropology circles, between Everett, and his supporters, and Noam Chomsky, and his acolytes, over Chomsky's theory of "universal grammar" (UG).  (I'm not going into detail on the theories here, because that's not my purpose.)  Everett's 2008 book pretty well laid out UG.

What Wolfe explained in Kingdom of Speech is that Chomsky's people were like a (socialist, but, like, really, socialist) cult; they had been merciless in defending UG against advancing science showing UG to be garbage (I generalize). They would go after scientists to undermine their work and in that way kept UG around as a dominant theory of language development for decades, despite what, we see clearly now, was a dearth of evidence. UG was less science and more belief system, or academic cult of personality, built around Chomsky.

Among the unusual features of the Pirahã language is a lack of verb tense, as well as other treatments of time and relativity (especially the omission of something called "recursion"; again, not going into it here) that make communication with us, speakers of the world's modern languages, very difficult. One could conclude that the Pirahã are not very smart, because they don't communicate the way we do. That's mistaken; it's apples and oranges. But it's difficult to perceive Pirahã intellect until one masters the language, and Everett was the first outsider who ever did, only after years of study (and he is a savant-level quick study).

So here's the pertinent part. Everett was burgeoningly famous for his research on the ground in Brazil. Chomsky hated field work in general and hated Everett in particular, whose research was exploding UG. So, in 2007, Chomsky's side engineered this, according to Wolfe:

"Everett was in the United States teaching at Illinois State University when he got a call from a canary with a PhD informing him that a Brazilian government agency, FUNAI, the Portuguese acronym for the National Indian Foundation, was denying him permission to return to the Pirahã ... on the grounds that what he had written about them was ... racist. He was dumbfounded." (Wolfe's ellipses and emphasis.)

Wolfe further explained:

"Everett expressed nothing but admiration for the Pirahã. But by this time, even giving the vaguest hint that you looked upon some—er—indigenous people as stone simple was no longer elitist. The word, by 2007, was 'racist.' And racist had become hard tar to remove.

"Racist ... out of that came the modern equivalent of the Roman Inquisition's declaring Galileo 'vehemently suspect of heresy' and placing him under house arrest for the last eight years of his life, making it impossible for him to continue his study of the universe. But the Inquisition was at least wide open about what it was doing. In Everett's case, putting an end to his work was a clandestine operation."

It turns out that Don't Sleep, There are Snakes, in 2008, was Everett's rejoinder to this attack. The book was wildly popular, exceeding even the bounds of scholarly readership (thus reaching me), and hammered the nails to shut UG's coffin.

Though things worked out all right for Everett, Wolfe's story evidences, as if more evidence were needed, the defamatory potential of that R-word charge—even at a time when I was being told to let it go, that "words [could] never hurt me."

Incidentally, and strangely collaterally irrelevantly, Wolfe and I both are graduates of Washington and Lee University. As I just read in parody,"Washington and Lee University votes to remove offensive name from school's title. Will now simply be known as 'University.'"